Taru Kashyap vs Union Of India Thru. Deputy Secy. ...
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Allahabad High Court

Taru Kashyap vs Union Of India Thru. Deputy Secy. ... on 21 July, 2025

Author: Manish Mathur

Bench: Manish Mathur

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?A.F.R.
 
Neutral Citation No. - 2025:AHC-LKO:41651
 
Court No. - 18
 

 
Case :- WRIT - A No. - 4360 of 2023
 

 
Petitioner :- Taru Kashyap
 
Respondent :- Union Of India Thru. Deputy Secy. Ministry Of Woman And Child Development New Delhi And 2 Others
 
Counsel for Petitioner :- Dheeraj Awasthi,Devak Vardhan
 
Counsel for Respondent :- A.S.G.I.,Harsha Yadav
 

 
Hon'ble Manish Mathur,J.
 

1. Heard Mr. Devak Vardhan, learned counsel for petitioner and Ms. Harsha Yadav, learned counsel for opposite parties.

2. Petition has been filed challenging Clause 7 of the engagement letter dated 02/03.09.2021 to the extent it denies maternity leave to female employees in the establishment. Quashing of order dated 03.05.2023 granting matrimonial leave to petitioner without pay has also been sought alongwith a direction to concerned authority to grant maternity benefit to petitioner with full wages as applicable.

3. It has been submitted that petitioner was initially engaged on contractual basis on the post of Special Educator vide letter dated 08.10.2020 on a fixed honorarium for a period of 89 days. It is submitted that subsequently upon completion of the aforesaid tenure, the petitioner was again re-engaged on the said post on contractual basis vide letter dated 03.09.2021, again for a period of 89 but with a new addition of Clause 7 which denied benefits of maternity leave to petitioner. It is submitted that subsequently petitioner submitted an e-mail application dated 20.04.2023 seeking maternity leave in terms of Section 10 of the Maternity Benefit Act, 1961 for a period of two weeks w.e.f. 20.04.2023 till 04.05.2023. The said application was granted partly granting leave for the aforesaid time period without pay on medical grounds.

4. Learned counsel has adverted to the Maternity Benefit Act, 1961 to submit that the Act by its very nature applies even to contractual engagement in any establishment including the one under which petitioner was engaged. He has adverted to various sections of the Act of 1961 to submit that petitioner had a right to be granted the aforesaid benefit particularly those indicated in Sections 5, 8 and 10 of the Act. He has also placed reliance on judgment rendered by Hon'ble Supreme Court in the case of Dr. Kavita Yadav versus Secretary, Ministry of Health and Family Welfare Department and others, 2023 SCC OnLine SC 1067 as well as Division Bench of this Court in the case of Dr. Rachna Chaurasiya versus State of U.P. and others, 2017 SCC OnLine ALL 4396.

5. Learned counsel for opposite parties on the basis of counter affidavit has refuted submissions advanced by learned counsel for petitioner and has adverted to paragraphs 4 to 6 of the counter affidavit indicating the time periods whereunder petitioner was engaged on contractual basis. It is submitted that the aforesaid benefit could not be extended to petitioner in view of specific stipulation indicated in paragraph-7 of the letter dated 03.09.2021 whereby petitioner was re-engaged in service on contractual basis.

6. Upon consideration of submissions advanced by learned counsel for parties and perusal of material on record, it is evident that petitioner was initially engaged in service on contractual basis on the post of Special Educator for a period of 89 days vide order dated 08.10.2020. It is noticeable that the aforesaid letter of engagement did not contain any such prohibition in grant of maternity benefit to petitioner and it is only in the subsequent engagement letter dated 03.09.2021 where such a prohibition was indicated for the first time in Clause 7.

7. In view thereof, the question requiring adjudication would be whether petitioner would be governed by provisions of the Act of 1961 or the specific stipulation prohibiting maternity benefit as indicated in the engagement letter dated 03.09.2021 particularly in view of principles of estoppel.

8. With regard to aforesaid, a perusal of the Act of 1961 specifically in the statement of objects and reasons indicates that maternity protection is provided under different acts under the Central and State Governments and due to considerable diversity in provisions relating to qualifying conditions etc., the existing disparities in that respect were required to be removed. Section 2 of the Act clearly indicates its application to every shop or establishment within meaning of any law for the time being in force in which ten or more persons are employed, or were employed, on any day of preceding twelve months. The right to payment of maternity benefit has thereafter been indicated in Section 5 of the Act with qualifying period being indicated in Sub Section 2 thereof whereby no woman is to be entitled to maternity benefit unless she has actually worked in an establishment of the employer from whom she claims maternity benefit, for a period of not less than 80 days in the 12 months immediately preceding the date of her expected delivery.The definition clause indicated in Section 3 of the Act as defined employer and establishment which does not exclude any contractual engagement on behalf of the State.The explanation clause thereafter also indicates methodology of calculation of the 80 days. Sub-clause 3 indicates the maximum period of 26 weeks for entitlement of maternity benefit. The aspect of applicability of the aforesaid Act to persons engaged on contractual basis has been adjudicated by Hon'ble Supreme Court in the case ofDr. Kavita Yadav (supra) in the following manner:-

"5. The main question which falls for determination in this appeal is as to whether the maternity benefits, as contemplated in the 1961 Act, would apply to a lady employee appointed on contract if the period for which she claims such benefits overshoots the contractual period. Ms. Rachita Garg, learned counsel appearing for the respondent-employer, sought to defend the reasoning given in the judgment under appeal. Her main argument is that once the term or tenure of the contract ends, there cannot be a notional extension of the same by giving the employee the benefits of the 1961 Act in full, as contemplated in Section 5(2) thereof. It is her submission that any benefits that the appellant would be entitled to ought to be within the contractual period.

6. We have reproduced earlier in this judgment the provisions of Section 12(2)(a) of the 1961 Act. The aforesaid provision contemplates entitlement to the benefits under the 1961 Act even for an employee who is dismissed or discharged at any time during her pregnancy if the woman, but for such discharge or dismissal, would have been entitled to maternity benefits or medical bonus. Thus, continuation of maternity benefits is in-built in the statute itself, where the benefits would survive and continue despite the cessation of employment. In our opinion, what this legislation envisages is entitlement to maternity benefits, which accrues on fulfillment of the conditions specified in Section 5(2) thereof, and such benefits can travel beyond the term of employment also. It is not co-terminus with the employment tenure. A two Judge Bench of this Court in the case of Municipal Corporation of Delhi v. Female Workers (Muster Roll) [(2000) 3 SCC 224], while dealing with a similar claim by female muster roll workers who were employed on daily wages, opined that the provisions relating to maternity benefits in the 1961 Act would be applicable in their cases as well. That dispute had reached this Court through the Industrial Tribunal and the High Court. Before both these fora, the Union espousing the cause of the female workers was successful. In that case, point of discrimination was highlighted as regular women employees were extended the benefits of the said Act but not those who were employed on casual basis or on muster roll on daily wage basis. This Court observed, in paragraph 27 of the said judgment: -

"27. The provisions of the Act which have been set out above would indicate that they are wholly in consonance with the Directive Principles of State Policy, as set out in Article 39 and in other articles, specially Article 42. A woman employee, at the time of advanced pregnancy cannot be compelled to undertake hard labour as it would be detrimental to her health and also to the health of the foetus. It is for this reason that it is provided in the Act that she would be entitled to maternity leave for certain periods prior to and after delivery. We have scanned the different provisions of the Act, but we do not find anything contained in the Act which entitles only regular women employees to the benefit of maternity leave and not to those who are engaged on casual basis or on muster roll on daily-wage basis.""

9. It has, thus, been held in the aforesaid judgment taking recourse to Section 12 (2) (a) of the Act of 1961 that the provisions of Act of 1961 would be applicable even on ladies who are employed on contractual basis.

10. The aforesaid reasoning has also been adopted by Division Bench of of this Court in the case of Dr.Dr. Rachna Chaurasiya(supra) in the following manner:-

"Maternity benefit is a social insurance and the Maternity Leave is given for maternal and child health and family support. On a perusal of different provisions of the Act, 1961 as well as the policy of the Central Government to grant Child Care Leave and the Government Orders issued by the State of U.P. adopting the same for its female employees, we do not find anything contained therein which may entitle only to women employees appointed on regular basis to the benefit of Maternity Leave or Child Care Leave and not those, who are engaged on casual basis or on muster roll on daily wage basis.

The aforesaid view taken by us find full support from the dictum of Hon'ble Apex Court in the case of Municipal Corporation of Delhi Vs. Female Workers (Muster Roll) & Anr., (2000) 3 SCC 224. It may be relevant to produce paragraph 27 from the said report.

"The provisions of the Act which have been set out above would indicate that they are wholly in consonance with the Directive Principles of State Policy, as set out in Article 39 and in other Articles, specially Article 42. A woman employee, at the time of advanced pregnancy cannot be compelled to undertake hard labour as it would be detrimental to her health and also to the health of the foetus. It is for this reason that it is provided in the Act that she would be entitled to Maternity Leave for certain periods prior to and after delivery. We have scanned the different provisions of the Act, but we do not find anything contained in the Act which entitles only regular women employees to the benefit of Maternity Leave and not to those who are engaged on casual basis or on muster roll on daily wage basis."

We are of the considered opinion that the benefit under the Act as well as the Rules of the Government Orders providing for grant of Maternity benefits and Child Care leave are applicable to all female employees, irrespective of their nature of employment whether permanent, temporary or contractual."

11. The aforesaid aspect may also be required to be considered in view of Section 23 of the Contract Act which prohibits unconscionable contracts, which are required to be seen in terms of Articles 39 and 42 of the Constitution of India pertaining to directive principles in a welfare society.

12. Upon examination of Section 23 of the Contract Act, it would be evident that in case Clause 7 of the letter dated 03.09.2021 is held to be maintained, it would definitely defeat provisions of Act of 1961 and therefore, the consideration and object of paragraph-7 of the letter dated 03.09.2021 would definitely be against principles and objects of the Act of 1961 which are beneficial in nature and would have reference to the right of a lady to bear children which would come within realm of a Fundamental Right under Article 21 of the Constitution of India.

13. The aforesaid aspect is also required to be considered in the light of Section 27 of the Act of 1961, which clearly indicates as follows:-

"21. Penalty for contravention of Act by employer - (1) If any employer fails to pay any amount of maternity benefit to a woman entitled udner this Act or discharges or dismisses such woman during or on account of her absence from work in accordance with the provisions of this Act, he shall be punishable with imprisonment which shall not be less than three months but which may extend to one year and with fine which shall not be less than two thousand rupees but which may extend to five thousand rupees :

Provided that the court may, for sufficient reasons to be recorded in writing, impose a sentence of imprisonment for a lesser term or fine only in lieu of imprisonment.

(2) If any employee contravenes the provisions of this Act or the rules made thereunder, he shall, if no other penalty is elsewhere provided by or under this Act for such contravention, be punishable with imprisonment which may extend to one year, or with fine which may extend to five thousand rupees, or with both :

Provided that where the contravention is of any provision regarding maternity benefit or regarding payment of any other amount and such maternity benefit or amount has not already been recovered, the court shall, in addition, recover such maternity benefit or amount as if it were a fine and pay the same to the person entitled thereto."

14. The aforesaid statutory provision, therefore, clearly enunciates that the provisions of Act of 1961 would have precedence over any terms of agreement or contract of service whether made before or after coming in force of the Act. The proviso thereto would be applicable only where the contract of engagement would have any provision which is more beneficial to an employee than the provisions of Act of 1961.

15. It is also evident from a perusal of counter affidavit, specifically paragraph 6 (7) thereof that petitioner was under contract of engagement from 31.03.2023 till 30.05.2023 and had sought maternity benefit during subsistence of her contract.

16. As has already been held hereinabove, the beneficial provisions of Act of 1961 would have preference over any prohibition of such maternity benefit as indicated in Clause-7 of the letter dated 03.09.2021.

17. In view thereof, petitioner would definitely be entitled to all the benefits accruing to her in terms of the Act of 1961 specifically those indicated in Sections 5, 8 and 10 of the Act of 1961.

18. Although it appears that subsequently petitioner has not been re-engaged in under contract but the aforesaid aspect also becomes irrelevant in view of enunciation of law in the case ofDr. Kavita Yadav (supra) in the following manner:-

"9. The respondents sought to distinguish the present dispute from the case of Female Workers (Muster Roll) (supra) on the ground that the said case arose from an award of the Industrial Tribunal and that there was a finding by the Tribunal that the muster roll lady workers were working for a long period of time. But the fact remains that in law, daily-wage workers cannot be said to have continuity of service for an unlimited period. The effect of that judgment was that their tenure also stood notionally extended so far as application of maternity benefits under the 1961 Act was concerned.

10. Our independent analysis of the provisions of the 1961 Act does not lead to an interpretation that the maternity benefits cannot survive or go beyond the duration of employment of the applicant thereof. The expression employed in the legislation is maternity benefits [in Section 2(h)] and not leave. Section 5(2) of the statute, which we have quoted above, stipulates the conditions on the fulfilment of which such benefits would accrue. Section 5(3) lays down the maximum period for which such benefits could be granted. The last proviso to Section 5(3) makes the benefits applicable even in a case where the applicant woman dies after delivery of the child, for the entire period she would have been otherwise entitled to. Further, there is an embargo on the employer from dismissing or discharging a woman who absents herself from work in accordance with the provisions of the Act during her absence. This embargo has been imposed under Section 12(2)(a) of the Act. The expression "discharge" is of wide import, and it would include "discharge on conclusion of the contractual period". Further, by virtue of operation of Section 27, the Act overrides any agreement or contract of service found inconsistent with the 1961 Act."

19. In view of discussions made hereinabove, Clause 7 of letter dated 03.09.2021 is hereby held not only to be unconstitutional but also against provisions of the Act of 1961. The opposite parties are hereby directed not to incorporate any such clause in any engagement on contractual basis even in future.

20. Accordingly, a writ in the nature of mandamus is issued commanding the opposite parties to ensure maternity benefits to petitioner in accordance with Sections 5, 8 and 10 of the Act of 1961 within a period of six weeks from the date a certified copy of this order is produced before the concerned authority.

21. Resultantly, petition succeeds and is allowed. Parties to bear their own cost.

Order Date :- 21.7.2025

Satish